DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Response to Amendment
This Office Action is in response to a preliminary amendment filed on 1/7/2026. As directed by the preliminary amendment, claim 17 was canceled, no claims were amended, and claim 21 was added. Thus, claims 1-16 and 18-21 are pending for this application.
Drawings
The drawings are objected to under 37 CFR 1.83(a). The drawings must show every feature of the invention specified in the claims. Therefore, the “rotor is non-motor operated” (claim 8) must be shown or the feature(s) canceled from the claim(s). No new matter should be entered.
Corrected drawing sheets in compliance with 37 CFR 1.121(d) are required in reply to the Office action to avoid abandonment of the application. Any amended replacement drawing sheet should include all of the figures appearing on the immediate prior version of the sheet, even if only one figure is being amended. The figure or figure number of an amended drawing should not be labeled as “amended.” If a drawing figure is to be canceled, the appropriate figure must be removed from the replacement sheet, and where necessary, the remaining figures must be renumbered and appropriate changes made to the brief description of the several views of the drawings for consistency. Additional replacement sheets may be necessary to show the renumbering of the remaining figures. Each drawing sheet submitted after the filing date of an application must be labeled in the top margin as either “Replacement Sheet” or “New Sheet” pursuant to 37 CFR 1.121(d). If the changes are not accepted by the examiner, the applicant will be notified and informed of any required corrective action in the next Office action. The objection to the drawings will not be held in abeyance.
Claim Rejections - 35 USC § 103
In the event the determination of the status of the application as subject to AIA 35 U.S.C. 102 and 103 (or as subject to pre-AIA 35 U.S.C. 102 and 103) is incorrect, any correction of the statutory basis (i.e., changing from AIA to pre-AIA ) for the rejection will not be considered a new ground of rejection if the prior art relied upon, and the rationale supporting the rejection, would be the same under either status.
This application currently names joint inventors. In considering patentability of the claims the examiner presumes that the subject matter of the various claims was commonly owned as of the effective filing date of the claimed invention(s) absent any evidence to the contrary. Applicant is advised of the obligation under 37 CFR 1.56 to point out the inventor and effective filing dates of each claim that was not commonly owned as of the effective filing date of the later invention in order for the examiner to consider the applicability of 35 U.S.C. 102(b)(2)(C) for any potential 35 U.S.C. 102(a)(2) prior art against the later invention.
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
Claim(s) 11, 13-14, and 19 is/are rejected under 35 U.S.C. 103 as being unpatentable over Courtin (US 3,163,161) in view of Schild (GB 2270472) and Cooper (US 5,458,562).
Regarding claim 11, Courtin discloses (Figs 1-3, 21 and 24-25) an air massager comprising:
an air flow generator (air supply system within casing 170) having an output (pipe 110);
a pulsed air generator (Fig. 21, structures 86-92) located downstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager (see Col. 10 lines 40-64).
Courtin does not disclose wherein the pulsed air generator comprise a stator and a rotor located downstream of the stator, the rotor being connected to the air turbine.
However, Schild teaches (Fig. 2-3B) a pulsed air generator comprising a stator (stator 22) and a rotor (rotor 21) located downstream of the stator (see Fig. 3B), the rotor being connected to the air turbine (page 11 paragraph 3).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the pulsed air generator of Courtin to comprise a stator and a rotor located downstream of the stator, the rotor being connected to the air turbine, as taught by Schild, for the purpose of providing a simple and effective means of producing air pulses through conventional stator-rotor operations.
Modified Courtin does not disclose the air flow generator is a turbine and a valve located upstream of the air turbine, the valve configured to regulate air flow to the air turbine.
However, Cooper teaches (Figs. 1-5) an air massage device comprising a turbine (pump 81 having fans, and thus a turbine) and a valve located upstream of the turbine (valve 89, upstream of turbine 81 as shown in Fig. 5), the valve being adjustable to regulate air flow to the air turbine (Col. 6 lines 1-9).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of modified claim 1 of patent to include a valve located upstream of the turbine, the valve being adjustable to regulate air flow to the air turbine, as taught by Cooper, for the purpose of allowing for adjustment of operation of blower to better suit user needs (Col. 6 lines 1-9).
Regarding claim 13, modified Courtin discloses the air flow generator generates air flow rate greater than 30 cubic feet per minute (40-80 cubic feet per minute, see claim 9 of Courtin).
Regarding claim 14, modified Courtin discloses a nozzle (tapered end portion of body 81 having orifice 83) downstream of pulsed air generator (see Fig. 21).
Regarding claim 19, modified Courtin discloses (Fig. 1-3, 21 and 24-25) a method of massaging a body part comprising the steps of:
(a) providing the air massager according to claim 1 (see rejection of claim 1);
(b) selecting a body part to be massaged (see Fig. 2)
(c) aiming the nozzle at the selected body part (see Fig. 2)
(d) generating a pulsed air flow from the air flow generator, through the nozzle, and to the body part (see Fig. 2 and Col. 5 lines 49-75)
wherein step (d) comprises generating an air flow of greater than 200 miles per hour and an air flow rate of greater than 30 cubic feet per minute (40-80 cubic feet per minute, see claim 9 of Courtin).
Claim(s) 12 is/are rejected under 35 U.S.C. 103 as being unpatentable over Courtin (US 3,163,161) in view of Schild (GB 2270472) and Cooper (US 5,458,562), and further in view of Stroud (US 10,675,209).
Regarding claim 12, modified Courtin discloses an air flow generator, but does not disclose the air flow generator generates air flow greater than 200 miles per hour.
However, Stroud teaches (Fig. 1-2) a fluid therapy device comprising an air flow generator (10) that generates air flow greater than 200 miles per hour (generates air flow of about 200 hundred miles per hour, Col. 4 lines 31-33, therefore values slightly greater than 200 miles per hour are interpreted to be included by this language and therefore the limitation is comprehended). Furthermore, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try to an air flow greater than 200 miles per hour for the purpose of providing the optimal air flow for improving patient condition, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the airflow of Courtin to be greater than 200 miles per hour , as taught and suggested by Stroud, for the purpose of providing sufficient air flow speed that is able to cool the surface of inflamed tissue, decreases circulation, and otherwise works with the parasympathetic nervous system to reduce inflammation, and therefore pain in a given region (Col. 4 lines 11-33 Stroud).
Claim(s) 18 is/are rejected under 35 U.S.C. 103 as being unpatentable over Courtin (US 3,163,161) in view of Schild (GB 2270472) and Cooper (US 5,458,562), and further in view of Armstrong (US 2,998,817).
Regarding claim 18, modified claim 1 of patent discloses a regulating valve, but does not disclose the valve is a butterfly valve.
However, Armstrong teaches (Fig. 1-4) a pneumatic massage system comprising a airflow regulating valve in the form of a butterfly valve (airflow regulator 26 which is preferably a butterfly valve, Col. 4 lines 24-32).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the valve of modified claim 1 of patent to be a butterfly valve, as taught by Cooper, for the purpose of providing a valve type that is suitable and reliable for regulating flow of a massage system.
Claim(s) 20-21 are rejected under 35 U.S.C. 103 as being unpatentable over Courtin (US 3,163,161) in view Stroud (US 10,675,209).
Regarding claim 20, Courtin discloses (Figs. 1-3, 21, 24-25) an air massager comprising:
an air inlet (inlet of air flow generator within casing 170);
an output (output of nozzle 83);
a pulsed air generator (structures 86-92 Fig. 21) located upstream of the output (see Fig. 21), wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager (see Col. 10 lines 40-64),
wherein the pulsed air generator is configured to be disabled during operation of the air massager (via knurled knob 92),
wherein air flows through the air inlet, through the pulsed air generator, to the output, at an air flow rate less than 45 cubic feet per minute at the output (40-80 cubic feet per minute, see claim 9 of Courtin).
Courtin does not disclose air flows through the air inlet, through the pulsed air generator, to the output, at a velocity of between 240 and 457 miles per hour.
However, Stroud teaches (Fig. 1-2) a fluid therapy device comprising an air flow generator (10) that generates air flow between 240 and 457 miles per hour (generates air flow of about 200 hundred miles per hour, Col. 4 lines 31-33, therefore values slightly greater than 200 miles per hour are interpreted to be included by this language and therefore the limitation is comprehended). Furthermore, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try to an air flow between 240 and 457 miles per hour for the purpose of providing the optimal air flow for improving patient condition, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the airflow of Courtin to be between 240 and 457 miles per hour, as taught and suggested by Stroud, for the purpose of providing sufficient air flow speed that is able to cool the surface of inflamed tissue, decreases circulation, and otherwise works with the parasympathetic nervous system to reduce inflammation, and therefore pain in a given region (Col. 4 lines 11-33 Stroud).
Regarding claim 21, Courtin discloses (Figs. 1-3, 21, 24-25) an air massager comprising:
an air inlet (inlet of air flow generator within casing 170);
an output (output of nozzle 83);
a pulsed air generator (structures 86-92 Fig. 21) located upstream of the output (see Fig. 21), wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager (see Col. 10 lines 40-64),
wherein air flows through the air inlet, through the pulsed air generator, to the output, at an air flow rate less than 45 cubic feet per minute at the output (40-80 cubic feet per minute, see claim 9 of Courtin).
Courtin does not disclose air flows through the air inlet, through the pulsed air generator, to the output, at a velocity of between 240 and 457 miles per hour.
However, Stroud teaches (Fig. 1-2) a fluid therapy device comprising an air flow generator (10) that generates air flow between 240 and 457 miles per hour (generates air flow of about 200 hundred miles per hour, Col. 4 lines 31-33, therefore values slightly greater than 200 miles per hour are interpreted to be included by this language and therefore the limitation is comprehended). Furthermore, one of ordinary skill in the art before the effective filing date of the claimed invention would find it obvious to try to an air flow between 240 and 457 miles per hour for the purpose of providing the optimal air flow for improving patient condition, since discovering the optimum value only involves routine skill in the art. See In re Aller, 220 F.2d 454, 456, 105 USPQ 233, 235 (CCPA 1955).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the airflow of Courtin to be between 240 and 457 miles per hour, as taught and suggested by Stroud, for the purpose of providing sufficient air flow speed that is able to cool the surface of inflamed tissue, decreases circulation, and otherwise works with the parasympathetic nervous system to reduce inflammation, and therefore pain in a given region (Col. 4 lines 11-33 Stroud).
Double Patenting
The nonstatutory double patenting rejection is based on a judicially created doctrine grounded in public policy (a policy reflected in the statute) so as to prevent the unjustified or improper timewise extension of the “right to exclude” granted by a patent and to prevent possible harassment by multiple assignees. A nonstatutory double patenting rejection is appropriate where the conflicting claims are not identical, but at least one examined application claim is not patentably distinct from the reference claim(s) because the examined application claim is either anticipated by, or would have been obvious over, the reference claim(s). See, e.g., In re Berg, 140 F.3d 1428, 46 USPQ2d 1226 (Fed. Cir. 1998); In re Goodman, 11 F.3d 1046, 29 USPQ2d 2010 (Fed. Cir. 1993); In re Longi, 759 F.2d 887, 225 USPQ 645 (Fed. Cir. 1985); In re Van Ornum, 686 F.2d 937, 214 USPQ 761 (CCPA 1982); In re Vogel, 422 F.2d 438, 164 USPQ 619 (CCPA 1970); In re Thorington, 418 F.2d 528, 163 USPQ 644 (CCPA 1969).
A timely filed terminal disclaimer in compliance with 37 CFR 1.321(c) or 1.321(d) may be used to overcome an actual or provisional rejection based on nonstatutory double patenting provided the reference application or patent either is shown to be commonly owned with the examined application, or claims an invention made as a result of activities undertaken within the scope of a joint research agreement. See MPEP § 717.02 for applications subject to examination under the first inventor to file provisions of the AIA as explained in MPEP § 2159. See MPEP § 2146 et seq. for applications not subject to examination under the first inventor to file provisions of the AIA . A terminal disclaimer must be signed in compliance with 37 CFR 1.321(b).
The filing of a terminal disclaimer by itself is not a complete reply to a nonstatutory double patenting (NSDP) rejection. A complete reply requires that the terminal disclaimer be accompanied by a reply requesting reconsideration of the prior Office action. Even where the NSDP rejection is provisional the reply must be complete. See MPEP § 804, subsection I.B.1. For a reply to a non-final Office action, see 37 CFR 1.111(a). For a reply to final Office action, see 37 CFR 1.113(c). A request for reconsideration while not provided for in 37 CFR 1.113(c) may be filed after final for consideration. See MPEP §§ 706.07(e) and 714.13.
The USPTO Internet website contains terminal disclaimer forms which may be used. Please visit www.uspto.gov/patent/patents-forms. The actual filing date of the application in which the form is filed determines what form (e.g., PTO/SB/25, PTO/SB/26, PTO/AIA /25, or PTO/AIA /26) should be used. A web-based eTerminal Disclaimer may be filled out completely online using web-screens. An eTerminal Disclaimer that meets all requirements is auto-processed and approved immediately upon submission. For more information about eTerminal Disclaimers, refer to www.uspto.gov/patents/apply/applying-online/eterminal-disclaimer.
Claims 1-2, 5-7, and 9-10 rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, and 8-9 of U.S. Patent No. 12,042,464 in view of Smok (WO 2007/003974).
Regarding claim 1, the following comparison between the patent claims and the application claims highlights (see underlined features in the application claims) what elements are the same and different between the claims.
Patent claim 1
Application claim 1
An air massager comprising:
an air flow generator having an output; and
a pulsed air generator located downstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager, wherein the pulsed air generator comprises
a rotor having a first rotor aperture and a remainder of rotor apertures, the first rotor aperture and the remainder of rotor apertures being all of the rotor apertures and
a stator plate located vertically below the rotor, the stator plate having a first stator aperture and a remainder of stator apertures, the first stator aperture and the remainder of stator apertures being all of the stator apertures,
wherein when the rotor rotates, when the first rotor aperture is aligned with the first stator aperture, none of the remainder of rotor apertures are aligned with any of the remainder of stator apertures, generating air pulses.
An air massager comprising:
an air turbine having an output; and
a pulsed air generator located downstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager, wherein the pulsed air generator comprises:
a rotor having a first rotor aperture and a remainder of rotor apertures, the first rotor aperture and the remainder of rotor apertures being all of the rotor apertures, the rotor being connected to the air turbine; and
a stator plate located vertically below the rotor, the stator plate having a first stator aperture and a remainder of stator apertures, the first stator aperture and the remainder of stator apertures being all of the stator apertures,
wherein when the rotor rotates, when the first rotor aperture is aligned with the first stator aperture, none of the remainder of rotor apertures are aligned with any of the remainder of stator apertures, generating air pulses.
With respect to the additional features recited in application claim 1, patent claim 1 fails to recite the air flow generator is an air turbine.
However, Smok teaches (Fig. 1) an air massaging device that utilizes a turbine to generate and control the airflow to massage a user (page 3 lines 88-95).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of patent claim 1 to include a turbine, as taught by Smok, for the purpose of providing a reliable form of air flow generator capable of generator high levels of air flow so that user can receive massaging effect optimally.
For dependent claims 2, 5-7, 9-10, the recited limitations are contained in patent claims 2, 4-5, 8-9, respectively.
Claims 3 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, and 8-9 of U.S. Patent No. 12,042,464 in view of Smok (WO 2007/003974), and further in view of Cooper (US 5,458,562).
Regarding claim 3, modified claim 1 of patent discloses a turbine but does not disclose a valve located upstream of the turbine, the valve being adjustable to regulate air flow to the air turbine.
However, Cooper teaches (Figs. 1-5) an air massage device comprising a turbine (pump 81 having fans, and thus a turbine) and a valve located upstream of the turbine (valve 89, upstream of turbine 81 as shown in Fig. 5), the valve being adjustable to regulate air flow to the air turbine (Col. 6 lines 1-9).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of modified claim 1 of patent to include a valve located upstream of the turbine, the valve being adjustable to regulate air flow to the air turbine, as taught by Cooper, for the purpose of allowing for adjustment of operation of blower to better suit user needs (Col. 6 lines 1-9).
Claim 4 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, and 8-9 of U.S. Patent No. 12,042,464 in view of Smok (WO 2007/003974) and Cooper (US 5,458,562), and further in view of Armstrong (US 2,998,817).
Regarding claim 4, modified claim 1 of patent discloses a regulating valve, but does not disclose the valve is a butterfly valve.
However, Armstrong teaches (Fig. 1-4) a pneumatic massage system comprising a airflow regulating valve in the form of a butterfly valve (airflow regulator 26 which is preferably a butterfly valve, Col. 4 lines 24-32).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the valve of modified claim 1 of patent to be a butterfly valve, as taught by Cooper, for the purpose of providing a valve type that is suitable and reliable for regulating flow of a massage system.
Claim 8 is rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, and 8-9 of U.S. Patent No. 12,042,464 in view of Smok (WO 2007/003974), and further in view of Nichols (US 6,012,488).
Regarding claim 8, modified claim 1 of patent discloses a rotor, but does not disclose the rotor is non-motor operated.
However, Nichols teaches (Fig. 6) a rotor (rotor 64) that is non-motor operated (operated by a handle 210 as opposed to a stepper motor, Col. 5 lines 65-68 and Col. 6 lines 1-2).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of modified claim 1 of patent such that the rotor is non-motor operated, as taught by Nichols, for the purpose of allowing for user to directly control rotor function as well as to reduce cost and complexity by not requiring a motor and associated controller function for control of device.
Claims 11-15 and 19 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, and 8-9 of U.S. Patent No. 12,042,464 in view of Smok (WO 2007/003974) and Cooper (US 5,458,562).
Although the claims are not identical, they are not patentably distinct from one another. The application claims are broader in at least one aspect and also recite additional features not claimed in the patent claims.
For claim 11:
Regarding the broadening aspect of the application claims, the following comparison between the patent claims and the application claims highlights (see underlined features in the patent claims) what elements have been excluded in the presentation of the application claims.
Patent claim 1
Application claim 1
An air massager comprising:
an air flow generator having an output; and
a pulsed air generator located downstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager, wherein the pulsed air generator comprises
a rotor having a first rotor aperture and a remainder of rotor apertures, the first rotor aperture and the remainder of rotor apertures being all of the rotor apertures and
a stator plate located vertically below the rotor, the stator plate having a first stator aperture and a remainder of stator apertures, the first stator aperture and the remainder of stator apertures being all of the stator apertures,
wherein when the rotor rotates, when the first rotor aperture is aligned with the first stator aperture, none of the remainder of rotor apertures are aligned with any of the remainder of stator apertures, generating air pulses.
An air massager comprising:
an air turbine having an output; and
a pulsed air generator located downstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager,
wherein the pulsed air generator comprise
a stator and a rotor located downstream of the stator, the rotor being connected to the air turbine; and
a valve located upstream of the air turbine, the valve configured to regulate air flow to the air turbine
Thus, it is apparent, for the broadening aspect, that patent claim 1 includes features that are not in application claim 11. Following the rationale in In re Goodman, cited above, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer. Since application claim 11 is anticipated by patent claim 1, with respect to the broadening aspect, and since anticipation is the epitome of obviousness, then application claim 11 is obvious over patent claim 1 with respect to the broadening aspect.
With respect to the additional features recited in application claim 11, patent claim 1 fails to recite the air flow generator is an air turbine.
However, Smok teaches (Fig. 1) an air massaging device that utilizes a turbine to generate and control the airflow to massage a user (page 3 lines 88-95).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the invention of patent claim 1 to include a turbine, as taught by Smok, for the purpose of providing a reliable form of air flow generator capable of generator high levels of air flow so that user can receive massaging effect optimally.
Modified claim 1 of patent does not a valve located upstream of the air turbine, the valve configured to regulate air flow to the air turbine.
However, Cooper teaches (Figs. 1-5) an air massage device comprising a turbine (pump 81 having fans, and thus a turbine) and a valve located upstream of the turbine (valve 89, upstream of turbine 81 as shown in Fig. 5), the valve being adjustable to regulate air flow to the air turbine (Col. 6 lines 1-9).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the device of modified claim 1 of patent to include a valve located upstream of the turbine, the valve being adjustable to regulate air flow to the air turbine, as taught by Cooper, for the purpose of allowing for adjustment of operation of blower to better suit user needs (Col. 6 lines 1-9).
For dependent claims 12-15 and 19, the recited limitations are contained in patent claims 2, 4, and 8-9, respectively.
Claim 18 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, and 8-9 of U.S. Patent No. 12,042,464 in view of Smok (WO 2007/003974) and Cooper (US 5,458,562), and further in view of Armstrong (US 2,998,817).
Regarding claim 18, modified claim 1 of patent discloses a regulating valve, but does not disclose the valve is a butterfly valve.
However, Armstrong teaches (Fig. 1-4) a pneumatic massage system comprising a airflow regulating valve in the form of a butterfly valve (airflow regulator 26 which is preferably a butterfly valve, Col. 4 lines 24-32).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the valve of modified claim 1 of patent to be a butterfly valve, as taught by Cooper, for the purpose of providing a valve type that is suitable and reliable for regulating flow of a massage system.
Claim 20-21 are rejected on the ground of nonstatutory double patenting as being unpatentable over claims 1-2, 4-5, and 8-9 of U.S. Patent No. 12,042,464 in view of Courtin (US 3,163,161).
Although the claims are not identical, they are not patentably distinct from one another. The application claims are broader in at least one aspect and also recite additional features not claimed in the patent claims.
For claim 20:
Regarding the broadening aspect of the application claims, the following comparison between the patent claims and the application claims highlights (see underlined features in the patent claims) what elements have been excluded in the presentation of the application claims.
Patent claim 4
Application claim 20
1. An air massager comprising:
an air flow generator having an output; and
a pulsed air generator located downstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager, wherein the pulsed air generator comprises
a rotor having a first rotor aperture and a remainder of rotor apertures, the first rotor aperture and the remainder of rotor apertures being all of the rotor apertures and
a stator plate located vertically below the rotor, the stator plate having a first stator aperture and a remainder of stator apertures, the first stator aperture and the remainder of stator apertures being all of the stator apertures,
wherein when the rotor rotates, when the first rotor aperture is aligned with the first stator aperture, none of the remainder of rotor apertures are aligned with any of the remainder of stator apertures, generating air pulses.
4. The air massager according to claim 1, wherein the air flow generator generates air flow greater than 200 miles per hour.
An air massager comprising:
an air inlet;an output;
a pulsed air generator located upstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager, wherein the pulsed air generator is configured to be disabled during operation of the air massager,
wherein air flows through the air inlet, through the pulsed air generator, to the output, at a velocity of between 240 and 457 miles per hour and an air flow rate less than 45 cubic feet per minute at the output
Thus, it is apparent, for the broadening aspect, that patent claim 4 includes features that are not in application claim 20. Following the rationale in In re Goodman, cited above, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer. Since application claim 20 is anticipated by patent claim 4, with respect to the broadening aspect, and since anticipation is the epitome of obviousness, then application claim 20 is obvious over patent claim 4 with respect to the broadening aspect.
With respect to the additional features recited in application claim 20, patent claim 4 does not disclose the pulsed air generator located upstream of the output an air flow rate less than 45 cubic feet per minute at the output.
However, Courtin teaches (Figs. 1-3, 21 and 24-25) an air massager comprising an airflow generator (air supply system within casing 170) having an output (nozzle 83) and a pulsed air generator located upstream of the output (components 86-92 upstream of nozzle 83 shown in Fig. 21) wherein the air flow rate is less than 45 cubic feet per minute at the output (discloses range of 40-80 cubic feet per minute and thus claimed value within range).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of claim 4 of patent such that the pulsed air generator located upstream of the output and the air flow rate less than 45 cubic feet per minute at the output, as taught by Courtin, for the purpose of providing a reliable source of pulsations prior to administration to the user and to provide a strong but comfortable airflow to a user to provide therapeutic massage.
For claim 21:
Regarding the broadening aspect of the application claims, the following comparison between the patent claims and the application claims highlights (see underlined features in the patent claims) what elements have been excluded in the presentation of the application claims.
Patent claim 4
Application claim 21
1. An air massager comprising:
an air flow generator having an output; and
a pulsed air generator located downstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager, wherein the pulsed air generator comprises
a rotor having a first rotor aperture and a remainder of rotor apertures, the first rotor aperture and the remainder of rotor apertures being all of the rotor apertures and
a stator plate located vertically below the rotor, the stator plate having a first stator aperture and a remainder of stator apertures, the first stator aperture and the remainder of stator apertures being all of the stator apertures,
wherein when the rotor rotates, when the first rotor aperture is aligned with the first stator aperture, none of the remainder of rotor apertures are aligned with any of the remainder of stator apertures, generating air pulses.
4. The air massager according to claim 1, wherein the air flow generator generates air flow greater than 200 miles per hour.
An air massager comprising:
an air inlet;
an output;
a pulsed air generator located upstream of the output, wherein operation of the pulsed air generator alternately allows and restricts air flow from the massager, and
wherein air flows through the air inlet, through the pulsed air generator, to the output, at a velocity of between 240 and 457 miles per hour and an air flow rate less than 45 cubic feet per minute at the output.
Thus, it is apparent, for the broadening aspect, that patent claim 4 includes features that are not in application claim 21. Following the rationale in In re Goodman, cited above, where applicant has once been granted a patent containing a claim for the specific or narrower invention, applicant may not then obtain a second patent with a claim for the generic or broader invention without first submitting an appropriate terminal disclaimer. Since application claim 21 is anticipated by patent claim 4 with respect to the broadening aspect, and since anticipation is the epitome of obviousness, then application claim 21 is obvious over patent claim 4 with respect to the broadening aspect.
With respect to the additional features recited in application claim 20, patent claim 4 does not disclose the pulsed air generator located upstream of the output an air flow rate less than 45 cubic feet per minute at the output.
However, Courtin teaches (Figs. 1-3, 21 and 24-25) an air massager comprising an airflow generator (air supply system within casing 170) having an output (nozzle 83) and a pulsed air generator located upstream of the output (components 86-92 upstream of nozzle 83 shown in Fig. 21) wherein the air flow rate is less than 45 cubic feet per minute at the output (discloses range of 40-80 cubic feet per minute and thus claimed value within range).
Therefore, it would have been obvious to one of ordinary skill in the art before the effective filing date of the claimed invention to modify the system of claim 4 of patent such that pulsed air generator located upstream of the output and the air flow rate less than 45 cubic feet per minute at the output, as taught by Courtin, for the purpose of providing a reliable source of pulsations prior to administration to the user and providing a strong but comfortable airflow to a user to provide therapeutic massage.
Allowable Subject Matter
Claims 1-10 allowable over the prior art but are currently rejected due to non-statutory double patenting.
Claims 15-16 are allowable over the prior art. Claim 15 is currently rejected due to non-statutory double patenting. Claim 16 is objected to due to dependence on a rejected base claim.
Conclusion
The prior art made of record and not relied upon is considered pertinent to applicant's disclosure:
Whiteley (EP 0266862) discloses a rotor and stator structure similar to that claimed by applicant.
Macabee (US 4,441,488) discloses a gas massage device having a rotor that is non-motor operated.
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/MATTHEW R MOON/Examiner, Art Unit 3785
/TIMOTHY A STANIS/Supervisory Patent Examiner, Art Unit 3785
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